Nonappropriated-Fund Claims Regulations, 53424-53426 [E7-18205]

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53424
Federal Register / Vol. 72, No. 181 / Wednesday, September 19, 2007 / Rules and Regulations
of drawers and doors should be
examined to determine whether the
material is solid hardwood, fine quality
veneer over hardwood, veneer over
pressed wood, or other types of
material. If the inspection is conducted
at the claimant’s quarters, the general
quality of property should be
determined. Observations by repairmen
and transportation inspectors are very
valuable, but on occasion, claims
examiners may request an inspection.
Such inspections are necessary to
reduce the number of reconsiderations
and fraudulent claims and are
invaluable in enabling claims personnel
to understand the facts in many
situations.
I 10. Section 751.10 is amended by
revising footnote \1\ to read as follows:
§ 751.10
*
*
Form of claim.
*
*
*
1 Copies
of these forms may be obtained by
contacting the legal office or personal
property office serving the installation where
the claimant is stationed, or nearest to the
point where the loss or damage occurred or
on the Internet at http://www.jag.navy.mil.
11. Section 751.11 is revised to read
as follows:
I
§ 751.11
§ 751.14
Investigation of claim.
Upon receipt of a claim, the claim
shall be stamped with the date and
receiving office, forwarded to the
cognizant PCU and be referred to a
claims examiner. The examiner shall
consider all information and evidence
submitted with the claim and shall
conduct such further investigation as
may be necessary and appropriate.
§ 750.12
[Removed]
12. Section 750.12 is removed.
I 13. Redesignate 750.13 as § 750.12
and revise newly redesignated § 751.12
to read as follows:
I
§ 751.12
Payments.
Payment of approved personnel
claims will be made by the Navy or
Marine Corps disbursing officer serving
the adjudicating authority. Payments
will be charged to funds made available
to the adjudicating authority for this
purpose.
I 14. Section 751.14 is redesignated as
§ 751.13, and newly redesignated
§ 751.13 is revised to read as follows:
yshivers on PROD1PC66 with RULES
§ 751.13
Partial payments.
(a) Partial payments when hardship
exists. When claimants suffer a
significant, compensable loss of items
that are needed for daily living, and can
demonstrate a need for immediate funds
to replace some of those items (e.g.,
food, clothes, baby items, etc.) the
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15:05 Sep 18, 2007
Jkt 211001
adjudicating authority may authorize a
partial payment of an appropriate
amount, normally one-half of the
estimated total payment. When a partial
payment is made a copy of the payment
voucher and all other information
related to the partial payment shall be
placed in the claim file. Action shall be
taken to ensure the amount of the partial
payment is deducted from the
adjudicated value of the claim when
final payment is made.
(b) Marine hardship payments. The
Marine claimant’s Transportation
Management Office shall ensure
compliance with all requirements of
§ 751.14(a), and may request authority
for payment by message from the
Commandant of the Marine Corps
(MRP–2).
(c) Effect of partial payment. Partial
payments are to be subtracted from the
adjudicated value of the claim before
payment of the balance due.
Overpayments are to be properly
recouped.
I 15. Section 751.15 is redesignated as
§ 751.14 and newly redesignated
§ 751.14 is revised to read as follows:
Reconsideration and appeal.
(a) General. When a claim is denied
either in whole or in part, the claimant
shall be given written notification of the
initial adjudication and of the right to
submit a written request for
reconsideration to the original
adjudicating authority within 6 months
from the date the claimant receives
notice of the initial adjudication of the
claim. If a claimant requests
reconsideration and if it is determined
that the original action was erroneous or
incorrect, it shall be modified and,
when appropriate, a supplemental
payment shall be approved. If full
additional payment is not granted, the
file shall be forwarded for
reconsideration to the next higher
adjudicating authority. For claims
originally adjudicated by the Head,
Personnel Claims Unit Norfolk, the files
will be forwarded to the Judge Advocate
General (Claims and Tort
Litigation)(Code 15) for final action. The
claimant shall be notified of this action
either by letter or by copy of the letter
forwarding the file to higher
adjudicating authority. The forwarding
letter shall include a synopsis of action
taken on the file and reasons for the
action or denial, as well as a
recommendation of further action or
denial.
(b) Files forwarded to JAG. For files
forwarded to JAG in accordance with
§ 751.14(a), the forwarding endorsement
shall include the specific reasons why
the requested relief was not granted and
PO 00000
Frm 00014
Fmt 4700
Sfmt 4700
shall address the specific points or
complaints raised by the claimant’s
request for reconsideration.
(c) Appeals procedure for claims
submitted by Marine Corps personnel.
Where any of the Marine Corps
adjudication authorities listed in
§ 751.8(b) fail to grant the relief
requested, or otherwise resolve the
claim to the satisfaction of the claimant,
the request for reconsideration shall be
forwarded together with the entire
original file and the adjudicating
authority’s recommendation, to the
Judge Advocate General.
Subpart B—Demand on Carrier,
Contractor, or Insurer [Removed and
Reserved]
16. Remove and reserve subpart B
consisting of §§ 751.21 through 751.35.
I
Dated: September 10, 2007.
T.M. Cruz,
Lieutenant, Judge Advocate General’s Corps,
U.S. Navy, Federal Register Liaison Officer.
[FR Doc. E7–18204 Filed 9–18–07; 8:45 am]
BILLING CODE 3810–FF–P
DEPARTMENT OF DEFENSE
Department of the Navy
32 CFR Part 756
[USN–2006–0040]
RIN 0703–AA80
Nonappropriated-Fund Claims
Regulations
Department of the Navy, DoD.
Interim final rule.
AGENCY:
ACTION:
SUMMARY: This rule reflects
administrative changes to the
regulations concerning the
administrative processing of nonappropriated funds. The revisions will
ensure the proper administrative
processing and consideration of claims
on behalf of and against the United
States. This rule is being published by
the Department of the Navy (DoN) for
guidance and interest of the public in
accordance with 5 U.S.C. 552(a)(1).
DATES: This rule is effective September
19, 2007. Comments must be received
by November 19, 2007.
ADDRESSES: You may submit comments,
identified by docket number and/or
Regulatory Information Number (RIN)
and title, by any of the following
methods: Federal eRulemaking Portal:
http://www.regulations.gov. Follow the
instructions for submitting comments.
E:\FR\FM\19SER1.SGM
19SER1
yshivers on PROD1PC66 with RULES
Federal Register / Vol. 72, No. 181 / Wednesday, September 19, 2007 / Rules and Regulations
Mail: Federal Docket Management
System Office, 1160 Defense Pentagon,
Washington, DC 20301–1160.
Instructions: All submissions received
must include the agency name and
docket number or RIN for this Federal
Register document. The general policy
for comments and other submissions
from members of the public is to make
these submissions available for public
viewing on the Internet at http://
regulations.gov as they are received
without change, including any personal
identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Mr.
Dan Fields, Head, Tort Claims Branch,
Claims and Tort Litigation Division
(Code 15), Office of the Judge Advocate
General, 1322 Patterson Avenue, SE.,
Washington Navy Yard, DC 20374,
telephone 202–685–4600.
SUPPLEMENTARY INFORMATION: Executive
Order 12866, ‘‘Regulatory Planning and
Review.’’ It has been determined that
the changes to 32 CFR part 756 are not
considered a ‘‘significant regulatory
action.’’ The rule does not:
(1) Have an annual affect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector in the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs, or the rights and
obligations of the recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in this Executive Order.
Unfunded Mandates Reform Act (Sec.
202, Pub. L. 104–4). It has been certified
that 32 CFR part 756 does not contain
Federal Mandates that result in
expenditures by State, local and tribal
governments, in aggregate, or by the
private sector, of $100 million or more
in any one year.
Public Law 96–354, ‘‘Regulatory
Flexibility Act’’ (5 U.S.C. 601). It has
been determined that this rule is not
subject to the Regulatory Flexibility Act
(5 U.S.C. 601) because it would not, if
promulgated, have a significant
economic impact on a substantial
number of small entities. This rule
implements the processing of the proper
administrative processing and
consideration of claims on behalf of and
against the United States, and does not
economically impact the Federal
government’s relations with the private
sector.
VerDate Aug<31>2005
15:05 Sep 18, 2007
Jkt 211001
Public Law 96–511, ‘‘Paperwork
Reduction Act’’ (44 U.S.C. Chapter 35).
This rule does not impose collection of
information requirements for purposes
of the Paperwork Reduction Act (44
U.S.C. Chapter 35, 5 CFR part 1320).
Executive Order 13132, ‘‘Federalism’’.
It has been certified that 32 CFR part
756 does not have federalism
implications as set forth in Executive
Order 13132. This rule does not have
substantial direct effects on:
(1) The States;
(2) The relationship between the
National Government and the States; or
(3) The distribution of power and
responsibilities among the various
levels of Government.
List of Subjects in 32 CFR Part 756
Claims.
Accordingly, 32 CFR part 756 is
amended to read as follows:
I
PART 756—PROCEDURES FOR
PROCESSING CLAIMS INVOLVING
NON-APPROPRIATED FUND
ACTIVITIES AND THEIR EMPLOYEES
1. The authority citation for part 756
is revised to read as follows:
I
Authority: 5 U.S.C. 301, 10 U.S.C. 5013
and 5148.
2. The heading for part 756 is revised
to read as set forth above.
I 3. Section 756.1 is revised to read as
follows:
I
§ 756.1
Scope.
This part explains how to settle
claims for and against the United States
for property damage, personal injury, or
death arising out of the operation of
non-appropriated fund activities
(NAFI).1
I 4. Section 756.2 is amended by
revising paragraph (c) to read as follows:
53425
Unit Norfolk, 9620 Maryland Avenue,
Suite 100, Norfolk, VA 23511–2989.
(b) The TCU Norfolk has cognizance
over all DoN claims. Normally, the TCU
Norfolk has primary responsibility for
the negotiation and settlement of NAFI
claims. This is because NAFIs are
Federal agencies within the meaning of
the Federal Tort Claims Act (FTCA) if
the NAFI is charged with an essential
function of the DoN and if the degree of
control and supervision by the Navy is
more than casual or perfunctory.
Compare United States v. Holcombe,
277 F.2d 143 (4th Cir. 1960) and Scott
v. United States, 226 F. Supp. 846, (D.
Ga. 1963). Consequently, to the extent
sovereign immunity is waived by the
FTCA, 28 U.S.C. 1346(b), 2671–2672,
2674–2680, the United States remains
ultimately liable for payment of NAFI
claims.
I 6. Section 756.5 is revised to read as
follows:
§ 756.5
Investigation.
Claims arising out of the operation of
NAFIs, in and outside the United States,
shall be investigated in accordance with
the procedures for investigating similar
claims against appropriated fund
activities. The Manual of the Judge
Advocate General (JAGMAN), Chapter
II 2 provides guidance in conducting an
investigation of an incident or event
likely to result in claims or civil
litigation against or for DoN or the
United States.
I 7. Section 756.6 is revised to read as
follows:
§ 756.6
Negotiation.
(a) All claims resulting from NAFIs
should be submitted to the command
having cognizance over the NAFI
involved. The claim will then be
forwarded to the Tort Claims Unit (TCU)
Norfolk located at the following address:
Department of the Navy, Office of the
Judge Advocate General, Tort Claims
(a) General. Claims from NAFIs
should be processed primarily through
procedures, regulations, and statutes
applicable to similar appropriated fund
activity claims.
(b) When the NAFI is insured. When
a NAFI is insured, the insurer or the
contracted third-party claims
administrator (TPA) will normally
conduct negotiations with claimants.
The TCU Norfolk shall monitor the
negotiations conducted by the insurer or
TPA. Monitoring is normally limited to
ascertaining that someone has been
assigned to negotiate, to obtain periodic
status reports, and to close files on
settled claims. Any dissatisfaction with
the insurer’s or TPA’s handling of the
negotiations should be referred directly
to the Judge Advocate General (Claims
and Tort Litigation) for appropriate
action. If requested by the insurer or
1 DoD Directive 5515.6 establishes policy
governing the administrative processing of claims
arising out of the operation of non-appropriated
fund activities.
2 JAGMAN Chapter II (JAG Instruction 5800.7E) is
available at the Web site of the Navy Judge
Advocate General’s Corps at http://
www.jag.navy.mil.
§ 756.2
Definitions.
*
*
*
*
*
(c) Employees of NAFIs. Personnel
employed by NAFIs whose salaries are
paid from non-appropriated funds.
I 5. Revise § 756.4 to read as follows:
§ 756.4
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Responsibility.
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Fmt 4700
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19SER1
53426
Federal Register / Vol. 72, No. 181 / Wednesday, September 19, 2007 / Rules and Regulations
TPA, the TCU Norfolk may conduct
negotiations. If TCU Norfolk negotiates
a final settlement, however, request for
payment will be forwarded to the
insurer or TPA for payment.
Concurrence by the insurer or TPA in
the amount of the settlement is not
necessary.
(c) When the NAFI is not insured.
When there is no private commercial
insurer and the NAFI has made no
independent arrangements for
negotiations, the TCU Norfolk is
responsible for conducting negotiations.
When an appropriate settlement is
negotiated by the Navy, the
recommended award will be forwarded
to the NAFI for payment from nonappropriated funds.
I 8. Section 756.7 is revised to read as
follows:
yshivers on PROD1PC66 with RULES
§ 756.7
Payment.
(a) Claims that can be settled for less
than 1,500.00. A claim not covered by
insurance (or not paid by the insurer),
that can be settled for $1,500.00 or less,
may be adjudicated by the TCU Norfolk
or single-service authority and
forwarded to the commanding officer of
the activity concerned or designee for
payment out of funds available to the
commanding officer. The TCU Norfolk
or single-service authority will obtain
the required release from the claimant.
(b) Claims that cannot be settled for
less than $1,500.00. A claim negotiated
by the Navy, not covered by insurance,
that is for more than $1,500.00 will be
forwarded to the appropriate nonappropriated fund headquarters
command for payment from its nonappropriated funds.
(c) When payment is possible under
another statute. In some cases, neither
the NAFI nor its insurer may be legally
responsible. In those instances when
there is no negligence, and payment is
authorized under some other statute,
such as the Foreign Claims Act, 10
U.S.C. 2734–2736, the claim may be
considered for payment from
appropriated funds or may be referred to
the TCU Norfolk for appropriate action.
(d) Other claims. A NAFI’s private
insurance policy is usually not available
to cover losses that result from some act
or omission of a mere participant in a
non-appropriated fund activity. In the
event the NAFI declines to pay the
claim, the file shall be forwarded to the
TCU Norfolk for determination.
I 9. Section 756.8 is revised to read as
follows:
§ 756.8
Denial.
Claims resulting from nonappropriated fund activities may be
denied only by the TCU Norfolk. The
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15:05 Sep 18, 2007
Jkt 211001
denial will begin the six-month
limitation on filing suit against the
United States for claims filed under the
FTCA. Denial of a claim shall be in
writing and in accordance with subparts
A and B of part 750 of this chapter, as
appropriate. The TCU Norfolk should
not deny claims that have initially been
processed and negotiated by a nonappropriated fund activity, its insurer,
or TPA, until the activity or its insurer
has clearly stated in writing that it does
not intend to pay the claim and has
elected to defend the claim in court.
Dated: September 10, 2007.
T.M. Cruz,
Lieutenant, Judge Advocate General’s Corps,
U.S. Navy, Federal Register Liaison Officer.
[FR Doc. E7–18205 Filed 9–18–07; 8:45 am]
10. Section 756.9 is revised to read as
follows:
RIN 0703–AA81
Affirmative Claims Regulations
§ 756.9
AGENCY:
I
Claims by employees.
(a) Property. Claims by employees of
NAFIs for loss, damage, or destruction
of personal property incident to their
employment shall be processed and
adjudicated in accordance with subparts
A or B of part 751 of this chapter, as
appropriate. The claims will then be
forwarded to the appropriate NAFI for
payment from non-appropriated funds.
(b) Personal injury or death. (1)
Personal injury or death of citizens or
permanent residents of the United
States employed anywhere, or foreign
nationals employed within the United
States. Compensation is provided by the
Longshore and Harbor Workers’
Compensation Act (33 U.S.C. 901–950)
for employees of NAFIs who have
suffered injury or death arising out of,
and in the course of, their employment
(5 U.S.C. 8171). That Act is the
exclusive basis for Government liability
for such injuries or deaths that are
covered (5 U.S.C. 8173). A claim should
first be made under that Act if there is
a substantial possibility the injury or
death is covered under the Act’s
provisions.
(2) Personal injury or death of foreign
nationals employed outside of the
continental United States. Employees
who are not citizens or permanent
residents, and who are employed
outside the continental United States,
may be protected by private insurance
of the NAFI or by other arrangements.
When a non-appropriated fund activity
has elected not to obtain insurance
coverage or to make other arrangements,
compensation is separately provided by
Federal statute, military regulations, and
agreements with foreign countries. See 5
U.S.C. 8172, DoD 1401.1–M, Personnel
Policy Manual for Non-appropriated
Fund Instrumentalities and BUPERINST
5300.10A, NAF Personnel Manual.
PO 00000
Frm 00016
Fmt 4700
Sfmt 4700
BILLING CODE 3810–FF–P
DEPARTMENT OF DEFENSE
Department of the Navy
32 CFR Part 757
[USN–2006–0041]
ACTION:
Department of the Navy, DoD.
Interim final rule.
SUMMARY: This rule reflects
administrative changes to the
regulations concerning the
administrative processing and
consideration of claims on behalf of and
against the United States. The revisions
will ensure the proper administrative
processing and consideration of claims
on behalf of and against the United
States. This rule is being published by
the Department of the Navy for guidance
and interest of the public in accordance
with 5 U.S.C. 552(a)(1).
DATES: This rule is effective September
19, 2007. Comments must be received
by November 19, 2007.
ADDRESSES: You may submit comments,
identified by docket number and/or
Regulatory Information Number (RIN)
and title, by any of the following
methods: Federal eRulemaking Portal:
http://www.regulations.gov. Follow the
instructions for submitting comments.
Mail: Federal Docket Management
System Office, 1160 Defense Pentagon,
Washington, DC 20301–1160.
Instructions: All submissions received
must include the agency name and
docket number or RIN for this Federal
Register document. The general policy
for comments and other submissions
from members of the public is to make
these submissions available for public
viewing on the Internet at http://
regulations.gov as they are received
without change, including any personal
identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Mr.
Enrique Mendez, Head, Affirmative and
Personnel Claims Branch, Claims and
Tort Litigation Division (Code 15),
Office of the Judge Advocate General,
1322 Patterson, Avenue SE.,
Washington Navy Yard, DC 20374,
telephone 202–685–4621.
SUPPLEMENTARY INFORMATION: Executive
Order 12866, ‘‘Regulatory Planning and
E:\FR\FM\19SER1.SGM
19SER1

Agencies

[Federal Register Volume 72, Number 181 (Wednesday, September 19, 2007)]
[Rules and Regulations]
[Pages 53424-53426]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-18205]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Department of the Navy
32 CFR Part 756
[USN-2006-0040]
RIN 0703-AA80
Nonappropriated-Fund Claims Regulations
AGENCY: Department of the Navy, DoD.
ACTION: Interim final rule.
-----------------------------------------------------------------------
SUMMARY: This rule reflects administrative changes to the regulations
concerning the administrative processing of non-appropriated funds. The
revisions will ensure the proper administrative processing and
consideration of claims on behalf of and against the United States.
This rule is being published by the Department of the Navy (DoN) for
guidance and interest of the public in accordance with 5 U.S.C.
552(a)(1).
DATES: This rule is effective September 19, 2007. Comments must be
received by November 19, 2007.
ADDRESSES: You may submit comments, identified by docket number and/or
Regulatory Information Number (RIN) and title, by any of the following
methods: Federal eRulemaking Portal: http://www.regulations.gov. Follow
the instructions for submitting comments.
[[Page 53425]]
Mail: Federal Docket Management System Office, 1160 Defense
Pentagon, Washington, DC 20301-1160.
Instructions: All submissions received must include the agency name
and docket number or RIN for this Federal Register document. The
general policy for comments and other submissions from members of the
public is to make these submissions available for public viewing on the
Internet at http://regulations.gov as they are received without change,
including any personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Mr. Dan Fields, Head, Tort Claims
Branch, Claims and Tort Litigation Division (Code 15), Office of the
Judge Advocate General, 1322 Patterson Avenue, SE., Washington Navy
Yard, DC 20374, telephone 202-685-4600.
SUPPLEMENTARY INFORMATION: Executive Order 12866, ``Regulatory Planning
and Review.'' It has been determined that the changes to 32 CFR part
756 are not considered a ``significant regulatory action.'' The rule
does not:
(1) Have an annual affect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector in the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of the
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.
Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4). It has been
certified that 32 CFR part 756 does not contain Federal Mandates that
result in expenditures by State, local and tribal governments, in
aggregate, or by the private sector, of $100 million or more in any one
year.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601).
It has been determined that this rule is not subject to the Regulatory
Flexibility Act (5 U.S.C. 601) because it would not, if promulgated,
have a significant economic impact on a substantial number of small
entities. This rule implements the processing of the proper
administrative processing and consideration of claims on behalf of and
against the United States, and does not economically impact the Federal
government's relations with the private sector.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter
35). This rule does not impose collection of information requirements
for purposes of the Paperwork Reduction Act (44 U.S.C. Chapter 35, 5
CFR part 1320).
Executive Order 13132, ``Federalism''. It has been certified that
32 CFR part 756 does not have federalism implications as set forth in
Executive Order 13132. This rule does not have substantial direct
effects on:
(1) The States;
(2) The relationship between the National Government and the
States; or
(3) The distribution of power and responsibilities among the
various levels of Government.
List of Subjects in 32 CFR Part 756
Claims.
0
Accordingly, 32 CFR part 756 is amended to read as follows:
PART 756--PROCEDURES FOR PROCESSING CLAIMS INVOLVING NON-
APPROPRIATED FUND ACTIVITIES AND THEIR EMPLOYEES
0
1. The authority citation for part 756 is revised to read as follows:
Authority: 5 U.S.C. 301, 10 U.S.C. 5013 and 5148.
0
2. The heading for part 756 is revised to read as set forth above.
0
3. Section 756.1 is revised to read as follows:
Sec. 756.1 Scope.
This part explains how to settle claims for and against the United
States for property damage, personal injury, or death arising out of
the operation of non-appropriated fund activities (NAFI).\1\
---------------------------------------------------------------------------
\1\ DoD Directive 5515.6 establishes policy governing the
administrative processing of claims arising out of the operation of
non-appropriated fund activities.
0
4. Section 756.2 is amended by revising paragraph (c) to read as
follows:
Sec. 756.2 Definitions.
* * * * *
(c) Employees of NAFIs. Personnel employed by NAFIs whose salaries
are paid from non-appropriated funds.
0
5. Revise Sec. 756.4 to read as follows:
Sec. 756.4 Responsibility.
(a) All claims resulting from NAFIs should be submitted to the
command having cognizance over the NAFI involved. The claim will then
be forwarded to the Tort Claims Unit (TCU) Norfolk located at the
following address: Department of the Navy, Office of the Judge Advocate
General, Tort Claims Unit Norfolk, 9620 Maryland Avenue, Suite 100,
Norfolk, VA 23511-2989.
(b) The TCU Norfolk has cognizance over all DoN claims. Normally,
the TCU Norfolk has primary responsibility for the negotiation and
settlement of NAFI claims. This is because NAFIs are Federal agencies
within the meaning of the Federal Tort Claims Act (FTCA) if the NAFI is
charged with an essential function of the DoN and if the degree of
control and supervision by the Navy is more than casual or perfunctory.
Compare United States v. Holcombe, 277 F.2d 143 (4th Cir. 1960) and
Scott v. United States, 226 F. Supp. 846, (D. Ga. 1963). Consequently,
to the extent sovereign immunity is waived by the FTCA, 28 U.S.C.
1346(b), 2671-2672, 2674-2680, the United States remains ultimately
liable for payment of NAFI claims.
0
6. Section 756.5 is revised to read as follows:
Sec. 756.5 Investigation.
Claims arising out of the operation of NAFIs, in and outside the
United States, shall be investigated in accordance with the procedures
for investigating similar claims against appropriated fund activities.
The Manual of the Judge Advocate General (JAGMAN), Chapter II \2\
provides guidance in conducting an investigation of an incident or
event likely to result in claims or civil litigation against or for DoN
or the United States.
---------------------------------------------------------------------------
\2\ JAGMAN Chapter II (JAG Instruction 5800.7E) is available at
the Web site of the Navy Judge Advocate General's Corps at http://
www.jag.navy.mil.
0
7. Section 756.6 is revised to read as follows:
Sec. 756.6 Negotiation.
(a) General. Claims from NAFIs should be processed primarily
through procedures, regulations, and statutes applicable to similar
appropriated fund activity claims.
(b) When the NAFI is insured. When a NAFI is insured, the insurer
or the contracted third-party claims administrator (TPA) will normally
conduct negotiations with claimants. The TCU Norfolk shall monitor the
negotiations conducted by the insurer or TPA. Monitoring is normally
limited to ascertaining that someone has been assigned to negotiate, to
obtain periodic status reports, and to close files on settled claims.
Any dissatisfaction with the insurer's or TPA's handling of the
negotiations should be referred directly to the Judge Advocate General
(Claims and Tort Litigation) for appropriate action. If requested by
the insurer or
[[Page 53426]]
TPA, the TCU Norfolk may conduct negotiations. If TCU Norfolk
negotiates a final settlement, however, request for payment will be
forwarded to the insurer or TPA for payment. Concurrence by the insurer
or TPA in the amount of the settlement is not necessary.
(c) When the NAFI is not insured. When there is no private
commercial insurer and the NAFI has made no independent arrangements
for negotiations, the TCU Norfolk is responsible for conducting
negotiations. When an appropriate settlement is negotiated by the Navy,
the recommended award will be forwarded to the NAFI for payment from
non-appropriated funds.
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8. Section 756.7 is revised to read as follows:
Sec. 756.7 Payment.
(a) Claims that can be settled for less than 1,500.00. A claim not
covered by insurance (or not paid by the insurer), that can be settled
for $1,500.00 or less, may be adjudicated by the TCU Norfolk or single-
service authority and forwarded to the commanding officer of the
activity concerned or designee for payment out of funds available to
the commanding officer. The TCU Norfolk or single-service authority
will obtain the required release from the claimant.
(b) Claims that cannot be settled for less than $1,500.00. A claim
negotiated by the Navy, not covered by insurance, that is for more than
$1,500.00 will be forwarded to the appropriate non-appropriated fund
headquarters command for payment from its non-appropriated funds.
(c) When payment is possible under another statute. In some cases,
neither the NAFI nor its insurer may be legally responsible. In those
instances when there is no negligence, and payment is authorized under
some other statute, such as the Foreign Claims Act, 10 U.S.C. 2734-
2736, the claim may be considered for payment from appropriated funds
or may be referred to the TCU Norfolk for appropriate action.
(d) Other claims. A NAFI's private insurance policy is usually not
available to cover losses that result from some act or omission of a
mere participant in a non-appropriated fund activity. In the event the
NAFI declines to pay the claim, the file shall be forwarded to the TCU
Norfolk for determination.
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9. Section 756.8 is revised to read as follows:
Sec. 756.8 Denial.
Claims resulting from non-appropriated fund activities may be
denied only by the TCU Norfolk. The denial will begin the six-month
limitation on filing suit against the United States for claims filed
under the FTCA. Denial of a claim shall be in writing and in accordance
with subparts A and B of part 750 of this chapter, as appropriate. The
TCU Norfolk should not deny claims that have initially been processed
and negotiated by a non-appropriated fund activity, its insurer, or
TPA, until the activity or its insurer has clearly stated in writing
that it does not intend to pay the claim and has elected to defend the
claim in court.
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10. Section 756.9 is revised to read as follows:
Sec. 756.9 Claims by employees.
(a) Property. Claims by employees of NAFIs for loss, damage, or
destruction of personal property incident to their employment shall be
processed and adjudicated in accordance with subparts A or B of part
751 of this chapter, as appropriate. The claims will then be forwarded
to the appropriate NAFI for payment from non-appropriated funds.
(b) Personal injury or death. (1) Personal injury or death of
citizens or permanent residents of the United States employed anywhere,
or foreign nationals employed within the United States. Compensation is
provided by the Longshore and Harbor Workers' Compensation Act (33
U.S.C. 901-950) for employees of NAFIs who have suffered injury or
death arising out of, and in the course of, their employment (5 U.S.C.
8171). That Act is the exclusive basis for Government liability for
such injuries or deaths that are covered (5 U.S.C. 8173). A claim
should first be made under that Act if there is a substantial
possibility the injury or death is covered under the Act's provisions.
(2) Personal injury or death of foreign nationals employed outside
of the continental United States. Employees who are not citizens or
permanent residents, and who are employed outside the continental
United States, may be protected by private insurance of the NAFI or by
other arrangements. When a non-appropriated fund activity has elected
not to obtain insurance coverage or to make other arrangements,
compensation is separately provided by Federal statute, military
regulations, and agreements with foreign countries. See 5 U.S.C. 8172,
DoD 1401.1-M, Personnel Policy Manual for Non-appropriated Fund
Instrumentalities and BUPERINST 5300.10A, NAF Personnel Manual.
Dated: September 10, 2007.
T.M. Cruz,
Lieutenant, Judge Advocate General's Corps, U.S. Navy, Federal Register
Liaison Officer.
[FR Doc. E7-18205 Filed 9-18-07; 8:45 am]
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